The regular controversies over Supreme Court appointments serve as a good example of how norms are only as strong, or last only as long, as the institutional arrangement they are supposed to support. The nominating process now is riven by raw power plays, not marked by civility, or buttressed by norms committing the Senate to fair hearings and some measure of deference to the executive. Each side will seize upon any advantage it can in nominating and confirming, or blocking from accession to the court, justices of a particular ideological stripe. “There are no rules,” as Ben Wittes and Miguel Estrada wrote three years ago: “the “confirmation process is the law of the jungle.”
But it remains hard for the participants in this conflict to admit to what is going on, and why it is inevitable. Each appeals as it suits them to “norms” and accuses the other of blatantly disregarding them. And Wittes and Estrada lamented the fallen state of affairs in which nominees did not “receive prompt hearings and up-and-down votes based solely on their objective qualifications—education, experience and temperament.”
But it would be better to set aside these concerns and openly acknowledge the truth of the matter. The court is the site of power plays, because the court is powerful: It routinely accepts cases and renders decisions with major impact on the nation’s political, social, religious and cultural life. On the most polarizing issues, the court by definition will often render a large swath of the country deeply unhappy with the outcome. The disappointed parties will experience still keener frustration with the 5-4 votes—razor-thin margins for winner-take-all results. Add to this combustible mix that every single nomination may produce a justice who serves for 40 or more.